CHAPTER XXXI.
OF CHECKS AND CONTROLS ON OTHER BRANCHES OF THE GOVERNMENT.
IS there any foundation for the position, that in a republic the people
are naturally betrayed by those in whom they trust?
Is it true that personal , power and independence in the magistrate,
being the immediate consequence of the favour of the people, they are
under an unavoidable necessity of being betrayed? [1]
Were this objection well founded, we should shrink with horror from the
formation of a republic. Let us examine how it is attempted to be
supported.
The first postulate is, that those who are in possession of power,
generally strive to enlarge it for their own advantage in preference to
the public good. In those governments where no restraint on the conduct
of public officers is provided, we see to what an extent this propensity
has been sometimes carried. Rome is the favourite example adduced to
support the proposition.
It was found impossible for the people of that state, ever, to have
faithful defenders. Neither those whom they expressly chose, nor those
whom some personal advantages enabled to govern the assemblies, were
united to them by any common feeling of the same concern. The tribunes
pursued with zeal and perseverance, no greater object than to procure
admission to all the different dignities in the republic. To admit the
plebeians to participate in offices previously confined to patricians,
was considers a it great victory over the latter. The use they made of
the power of the people was to increase prerogatives, which they falsely
called the prerogatives of all, but which the tribunes and their friends
alone were likely to enjoy. But it does not appear that they ever set
bounds to the terrible power of the magistrates, or repressed that class
of citizens who knew how to make their crimes pass unpunished, or to
regulate and strengthen the judicial power; precautions without which
men might struggle to the end of time, and never attain true liberty.
Such are the views taken of this great, but internally imperfect
republic, and a general proposition is illogically deduced from a
particular instance.
If a Constitution is so framed that official power becomes at once
absolute and independent of law; if the magistrates who are to
administer the law are authorized like the prętors, to make it from time
to time as they think proper, and if a competition is admitted among the
public officers, as to who shall exercise the most authority, and he who
succeeds the best, cannot be compelled by the people either to surrender
or reduce it; the very appointment, in such case, tends to stimulate all
the evil propensities, and create a dereliction of all the moral
obligations of man. But it is an error to suppose, (if it is supposed,)
that this is confined to republican forms. The distinction would only be
in name. Create a government of any kind, and invest its officers with
powers so extensive and uncontrollable, and there will be the same
abuses. The only difference will be that in one case we shall say the
people are oppressed; in the other that they are betrayed.
A knowledge of human nature, too perspicacious not to perceive the
danger, and too cautious not to provide against it, dictated in the
composition of our Constitution, those checks and balances on which its
purity and continuance were calculated to depend. While all necessary
power was granted, every sound precaution was adopted to prevent its
abuse.
We have already considered the express restrictions on the legislature,
and have seen that on some points they cannot legislate at all, and on
many others they can act only to a limited extent; but a wider view may
be now taken, and an examination of the entire context will fully
exhibit a pervading principle, which, while it secures the due
performance of public duty, prevents its abuse.
The legislature is in the first place restrained by a fixed and absolute
Constitution, over which it has no sort of power. In wine countries, and
in one of our own states, [2] the legislature laying their hands on the
Constitution, may so mould it from time to time, as to give a sanction
to measures not within its original contemplation. But the Constitution
of the United States, the work of the people, alterable only by the
people, possesses a sacred and intangible character in respect to the
legislature. This is, therefore, the great restraint. When the
legislature feels that it has no power unless the Constitution has given
it, the mere shame of being defeated in any step which cannot be
supported, compels it to look to the Constitution for its authority, and
if it cannot find it there, to desist from the measure.
Secondly, as this may not always be a sufficient restraint, the judicial
power presents an effectual barrier against its excesses, the
observations on which head need not be, repeated. But, as observed, the
judicial power possesses no spontaneous motion -- it must be called into
action by the application of others either individuals, or constituted
authorities, -- and in the mean time, the obnoxious law may not only
take its place in the statute book, but be injuriously acted upon. The
third corrective therefore, is the hands of the people, who do not, as
disingenuously remarked, [3] make no other use of their power than to
give it away. The biennial election of the house of representatives, of
which the people can by no artifice be deprived, secures to them the
power of removing every member of that house who has shown, either an
inability to comprehend, or an unwillingness to conform to the
transcendent obligations of the Constitution, which he has sworn to
support. Here, then, we have the protection and safety unknown to those
countries where, either the legislature elect themselves, or enjoy an
hereditary right, or where, although the representative principle may be
nominally kept up, its exercise may be suspended or postponed at the
pleasure of another part of the government.
It is true, that this mode of reforming the abuse, is not at first full
and complete. The senate, which must have concurred in the
unconstitutional law, is not renewed at the same period, but the
Constitution, which for reasons heretofore assigned, conferred on this
body a longer duration of office, has regulated the continuance of each
senator, so that at the end of every two years one-third of the whole
must be chosen anew. The sense of the people, indicated by a full change
in the house of representatives, and by the change of one-third of the
senate, could not be without effect, and in two years more it would be
imperious and irresistible.
A further restraint, though less definite, yet not without considerable
weight, may be conceived in the influence arising from the portion of
sovereignty remaining in the states.
Although, to the full extent established by the Constitution, the power
of the legislature of the United States is superior to that of the
states, yet in the smallest particular in which they pass beyond the
true line, the power of the states is in full effect. The states will
always maintain a reasonable jealousy on this subject.
In all matters not transferred to the general government, the rights and
interests of the people are confided to the care of the state
governments, and an anxiety to secure and defend them has been uniformly
apparent in all the states. The desire of preserving harmony and order,
nay, the very love of power, always more valuable where it is least
resisted, will operate with great effect on the national legislature to
prevent its falling into unnecessary collisions with the states. This
consideration will have the greatest influence with the members of the
senate, who, although they do not in any sense sit and act as states in
a federative quality, and are not bound by instructions -- yet cannot
but look with much respect to, and feel a close connection with the
legislature of the state that appoints them.
2dly. The fears of those theoretical writers, who have gratified
themselves by lamenting the internal dangers of our republic, have been
chiefly directed against the tendency of the executive authority to
overpower the freedom of the people.
It is supposed that much is to be apprehended from the influence of an
officer who has the power of appointing so many other officers, and who
is entrusted with the management of the military force. It is true, they
admit that as he has not exclusively the appointment to office, this
influence is thereby somewhat diminished, but the recommendations
proceeding from him alone, and the power of dismission being exclusively
with him, the hope of the one, and the fear of the other, must confer
on him an excessive and alarming influence. All these considerations may
have weight, yet the evil consequences predicted are not likely to
ensue.
The military force, as we have seen, is well regulated not only by the
constitutional prohibition to provide for its support for a longer term
than two years, but also by the power that congress have to shorten even
that period, and by the great improbability that an American army would
consent to substitute for regular subsistence and the approbation of
their countrymen, the tumultuary and precarious exactions of internal
warfare, and convulsions, personal dangers which must be certain, and
eventual ruin from which they cannot be exempted. The influence supposed
to arise in respect to the appointments to, or dismissions from office,
can operate only in a narrow circle, and however far it might be
carried, would not tend to the subversion of the government, or even to
any material alteration of it, since the value of the offices would
always depend on the preservation of the Constitution and the laws, and
their emoluments could not be carried beyond their legal limits.
No person is eligible to the office of president before he attains the
age of thirty-five years, nor unless he has been a resident within the
United States for fourteen years.
The object of the latter provision is, that his habits and opinions
shall be as much as possible purely American, but temporary absence on
public business, and particularly on an embassy to a foreign nation,
would not be an interruption of residence in the sense here affixed to
it.
The senator must have attained the age of thirty years, and the members
of the house of representatives the age of twenty five years.
In some of the states, the chief executive magistrate is not again
eligible, until an interval has elapsed, after having served a certain
time. The Constitution of the United States, on the contrary, admits the
same individual to be continued in office by re-election during his
life.
The propriety of a rotation in office, has had some warm advocates. The
chief arguments in its favour seem to be,
1. That it renders the people more secure in their rights against an
artful and ambitious man. If it were impossible that the chief
magistrate should be re-elected after serving for a given time, it would
be in vain for him to concert plans and create an insidious influence
for the promotion of his own continuance in power.
2. On an opposite principle, it is supposed that he would be more
independent in the exercise of his office: when, knowing that he could
not be re-elected to it, he would not be under the necessity of courting
the popular favour.
And 3dly. It has occurred to the imaginations of some, that there would
be no small danger that the great powers of Europe, being interested in
having a friend in the president of the United States, would interpose
in his election, and the dangers and misfortunes of Poland be renewed in
America. [4]
In answer to these objections, it has been said with great truth and
force:
1st. That one ill effect of the exclusion would be a diminution of the
inducements to good behaviour. Less zeal would be felt in the discharge
of a duty, when the advantage of the station must be relinquished at a
determinate period. The desire of reward is one of the strongest
incentives of human conduct, and the best security for fidelity, is to
make interest coincide with duty. Even the love of fame, the ruling
passion of noble minds, prompting a man to plan and undertake arduous
enterprises for the public benefit, which might require time to perfect
them, would deter him from the undertaking, if he foresaw that he must
quit the scene before he could accomplish the work, and commit it,
together with his own reputation, to bands that might be unequal or
unfriendly to the task.
2dly. Experience is the parent of wisdom, and highly desirable in the
first magistrate of a nation. It would be injurious and absurd to
declare, that as soon as it is acquired, its possessor shall be
compelled to abandon the station in which he acquired it, and to which
it is adapted.
3dly. A third ill effect of the exclusion would be, the banishing men
from stations in which their presence might be of the greatest moment to
the public interest on particular emergencies. An ordinance which
prevents a nation from making use of its own citizens, in the manner
best suited to peculiar exigencies and circumstances, must be unwise.
Suppose, for instance, a war to exist, and the president then in place,
peculiarly fitted by his military talents and experience to conduct it
to advantage: to be obliged to exclude him from office, perhaps to
substitute inexperience for experience, and thereby unhinge and set
afloat the settled train of administration, might be of the greatest,
detriment. [5]
The apprehension of the interference of foreign nations in regard to the
office of president, unless he was at first elected for life, seems to
be without foundation. While he is elected only for four years at a
time, it is evident that it would be of no use to foreign powers to
corrupt him, unless they can intimidate or corrupt those who elect him;
but by the guarded provisions of the Constitution, it is impossible to
know for a long time beforehand, who those electors will be. As,
however, this mode of election has now become the act of the people, and
the electors are merely nominal, the whole body of the people, or at
least a majority of them, must be corrupted or intimidated, before such
a scheme can succeed; a measure not very practicable by any foreign
power. It is well known that in Poland, the king was elected, not by the
people at large, but by an aristocratic class, small in number, and
therefore accessible to foreign intrigues.
If It were desired by such powers to obtain an undue ascendancy in our
government, the attempts would be made, not on the president, but on the
members of the legislature, and particularly of the senate, but in no
government is it recollected that a necessary rotation in office was
ever imposed on the members of the legislature.
Down to the present moment, nothing in point of fact has occurred among
us to excite a regret at the continued eligibility of the same
individual. No undue influence has been practised, and the voice of the
people, sovereign in fact, as well as in theory, has been independently
exercised, both in the continuance and in the removal of their public
agents. The predominant feature of the American character, seems, in
truth, to be that sort of good sense, which invariably leads to just
distinctions between partial and general benefit. It is not pretended,
that party ebullitions do not sometimes overpower the calm reflection of
the community, but the illusions are temporary, and the sound judgment
which never wholly departs from the entire body, ultimately recovers its
ascendancy.
That universal phrenzy of the nation, of which Europe, both in ancient
and modern times has exhibited instances, never found place with us.
Temperate and self-collected in the most trying seasons, America always
pursued a regular course, terminating in that security and peace, which
violent agitations and tumultuous passions could not have procured.
Their good sense displays itself in the utter rejection of personal
influence, when the pursuits of the party are hostile to the general
sentiment. What is believed to be for the public good, is never
sacrificed to the views of any individual, however distinguished.
But there are certain legitimate restraints on the office of president,
which remove from the people every cause of uneasiness in respect to it.
These restraints consist, in part, of those already mentioned in regard
to the legislative bodies. In the first place, he is equally bound by
the Constitution, and must feet the same interest in conforming to it,
that is felt by those bodies. He has even less to do in respect to
alterations of the Constitution than the two houses have. He cannot
recommend to the people an amendment of it, and if the two houses
resolve to submit one to them, his concurrence in their so doing is not
required, [6] and perhaps would not be allowed.
Self-interest, (as just before observed,) is one of the strongest
permanent influences of human action, and wherever it can be coupled
with public duty, it affords great reason for believing that they will
act in concert.
Now, if we consider that the president, being a single officer, without
those combinations which may be formed by the members of the two houses;
not at any time during his official existence, returning to and mixing
with the mass of the people, and thereby to some extent enabled to
deceive and mislead them; but whatever may personally be his social
habits and republican simplicity, still separated from extensive
practical intercourse by the very nature of his office; we shall at once
perceive that all eyes being constantly fixed on him, his motions will
always be scrupulously watched, and so much of the regular execution of
his power as may be considered to depend on popular acquiescence, will
be diminished, in proportion as he evinces a design to extend it beyond
its constitutional bounds.
Nor would the supposed influence of the other executive officers support
him in such cases. Compared with the mass of the people, their numbers
are small, and their very dependence on him would render them suspected.
But the interests of those officers would operate in another direction:
as a wilful infringement of the Constitution will naturally terminate in
some way, in a destitution of the president's power, their interest
would not be promoted by contributing to an event injurious to
themselves, since his successor would of course manifest a deference to
public opinion by removing all the promoters and participators of the
preceding delinquency.
The Constitution may therefore be considered as having a still stronger
hold on the president, than on the legislative body.
2dly. If, from its nature, any political or casual motives could have an
effect on the judicial interposition when regularly called forth, it
would seem that it would be exercised with more alacrity against a
single officer, already become the subject of general suspicion or
disapprobation, than against those acts which must be considered as the
measures of the entire government.
But this is altogether an illegitimate view of the character of the
judicial power and mode of action. On the contrary, the president, while
labouring under public reprobation, would look forward to the judiciary,
with a certain confidence that prejudice and error would find no room in
the judgments by which the legality of his conduct would be decided.
This check upon lam would therefore be the more complete by being
unbiassed and certain.
3dly. But, as before observed in regard to the legislature, the
opportunity for this judicial intervention in its common form, may be
remote, and one transgression not resisted, may lead to another, till
the accumulation becomes too heavy to be borne.
Then, the power of the people arises in its majesty, and through their
appropriate organs, the house of representatives, the judicial power is
appealed to in another, a most imposing and conclusive form.
The dignified tribunal which the Constitution has provided for the trial
of impeachments, has now the eyes of the public immovably fixed on it.
Guilt or innocence, not prejudice or party motives, form the ground of
decision, and although the senate does not directly vacate or annul the
illegal acts that have taken place, which are still left to the redress
of the ordinary tribunals; it prevents the possibility of their being
again committed by the same individual, and the probability of their
being copied by another.
4thly. And so effectual are the disqualifications which the senate may
pronounce, that if the people, subsequently imposed on and misled by the
discarded president or his partisans, were inclined again to confide a
public trust to him, it would not be in their power to do so. The
sentence of the senate is immutable.
No similar caution, no analogous defence of the people against their own
dangerous clemency or forgetfulness, are to be found elsewhere. The
ostracism of Athens, the interdictions from fire and water of Rome, the
disqualifications in sentences on impeachments in England, might all be
repealed, and the party, however politically dangerous, be restored to
his former rank.
It may be inquired, why the power of pardoning should be absolutely
excluded in such a case as this? The answer has already been given. The
safety of the people is the supreme law: their liberties properly
regulated and secured are the cardinal objects of republican
constitutions. Those who have evinced the capacity to abuse a public
trust ought not to have a second opportunity to do so. If it were
possible to remove the disqualification thus solemnly imposed, the state
might be thrown into disorder; factions in favour of the delinquent be
formed; contrary pretensions be warmly, perhaps forcibly asserted -- and
the bloody, civic contests of ancient Rome might be renewed on the
polluted arena of a modern and a temperate republic. It is infinitely
preferable that one man should be meritedly deprived of part of the
rights and privileges of citizenship, than that the peace and happiness
of the whole community should be endangered.
The sentence itself is at the utmost a mild one; but the object of it is
still liable to the ordinary process of justice. If his crime should be
of that high class which subjects him to the forfeiture of life, the
president for the time being still possesses the power to prevent its
infliction. The individual with the accumulated weight of two
convictions, might safely be pardoned in respect to the second. He never
could again become an object of public confidence.
To these views of the checks upon this office, we may add the power of
the people, when the quadrennial period of election returns, to remove
him, whose conduct, although it may not have amounted to actual
delinquency, has excited even their suspicion.
Referring, without repeating it, to the last chapter, we may thus
recognise in every part of the Constitution those cautious provisions,
forming, adequate checks on every power it confers, restraining all from
doing wrong, yet not productive of an inconvenient interference with
each other when all do right; contributing to preserve a necessary
purity and vigour, and rendering the mere distribution of power the
means of correcting its abuse.
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1. See this bold assertion and its feeble illustration, in Delolme, book
2, ch. ix.
2. The state of Maryland. The legislature of that state may alter or
abolish any part of the Constitution or the bill of rights, provided the
bill for that purpose is passed three months before a new election, and
is confirmed by the general assembly at the first session after such
election, the object of which proviso undoubtedly is to afford the
people an opportunity to testify by the removal of the members a
disapprobation of their measures.
3. By Delolme, in the chapter already referred to.
4. See debates in Virginia convention, vol. iii. p. 67.
5. Federalist, No. 72.
6. 4 Hollingsworth v. Virginia, 3 Dallas, 378.